Analysis | State v. federal wildlife authority #backinthenews

A year ago, WyoFile published a story examining the question “Who owns wildlife,” which sought to define conflicting views regarding federal and state authorities.

The 12-page piece, which ran some 2,600 words, quoted state policy advisors, Game and Fish Commission members, conservationists, and researchers and cited a variety of legal documents and opinions. The subtitle, “federal authority a sleeper,” underscored the popular misconception that state management is supreme.

In fact laws and court decisions give the federal government much more authority than most people, including federal employees, credit it with. In short, constitutional clauses, laws, court opinions and regulations give the federal government the power to exercise authority over wildlife in many instances. Think, for example, about simple duck and goose hunting. States are constrained from allowing waterfowlers in their dominion to deplete flocks that may traverse the nation, and cross international borders.

Summing up one aspect of the debate, “if the wildlife in question is integral to the federal public lands, then it comes within the federal property clause as federal property,” said Sandra Zellmer, a professor at the Nebraska College of Law, University of Nebraska—Lincoln.

But a funny thing happened on WyoFile’s way to the public forum. One researcher we sought out for an interview would not participate. “Because the politics of this issue are so fraught, I’m sorry but I need to decline your request to talk with you about this,” the person wrote.

That was about a year ago, and subsequent events have validated that statement. On Sept. 24, Rob Chaney, a reporter with Montana’s Missoulian newspaper, published a story about the federal government’s public disavowal of a report penned, for the U.S. Forest Service, by a team at the Bolle Center for People and Forests at the University of Montana.

Because of its controversial title, the Forest Service asked the university to remove the paper, “Fish and Wildlife Management on Federal Lands: Debunking State Supremacy,” from the center’s website, Chaney reported. The report remains on the website today. But the federal agency yanked a two-year contract with the center, according to the Missoulian.

Simple questions prompted the story

Last year, WyoFile began its story thusly:

When the federal government finally removes Endangered Species Act protections from Yellowstone-area grizzlies, an established population of grizzly bears in the Wyoming Range, well south of the national park boundary, could be hunted, perhaps even extirpated.

One reason that grizzlies face a grim future there is a lack of “social tolerance,” state and federal officials have said. Sixty thousand grazing sheep in the Wyoming Range — easy pickings for grizzly bears — were among the factors that weighed on the social-tolerance scale when the U.S. Fish and Wildlife Service drew the boundary that guarantees where grizzlies will persist.

Wyofile then posed the question:

The grizzlies’ home in the Wyoming Range is almost exclusively on land owned by all Americans. Does a small group — those involved in the state livestock industry — get to decide the bear’s fate there?

State officials, including Jerimiah Rieman, policy advisor to Gov. Matt Mead, weighed in. The state’s position stems from the North American Model of Wildlife Management, a doctrine that has emerged from laws, court precedents and tradition, he said.

“The basic principle is that we own that wildlife and we manage it in trust … for [Wyoming’s] citizens, and more broadly for the U.S. and the world,” Rieman said.

Wyoming and other Western states have relied heavily on the 10th Amendment, which gives states a free hand in matters where the federal government hasn’t claimed or been given jurisdiction. In many aspects of wildlife management, states have been the first to establish laws and rules and so have assumed much authority over wildlife.

The story also quoted two persons who were Game and Fish commissioners at the time — Carrie Little and Richard Klouda. Along with Rieman, they reminded readers that many species of wildlife don’t spend their entire lives on federal property. The three touted ranchers’ contributions to open space and wildlife habitat. In doing so, they pointed out the complex relationship among federal, state and private interests when it comes to migrating and roaming wildlife, their health and future.

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In the story, WyoFile also reported legal milestones along the road to federal wildlife authority:

In 1979 when the U.S. Supreme Court ruled in a case known as Hughes v Oklahoma, the court handed the federal government a new standard under which it could operate. The court rejected as ‘19th Century legal fiction’ the concept of state ownership of wildlife. With the decision, ‘the last precedential impediment to the federal government’s wildlife management authority was removed,’ federal wilderness researcher Peter Landres and others wrote in a 2001 paper titled The Wilderness Act and Fish Stocking.

Another lower court case involved Wyoming, which sought to vaccinate elk against brucellosis on the National Elk Refuge, something U.S. Fish and Wildlife Service initially opposed. Where Wyoming sought control, it received instead a legal defeat.

The federal government has the right to manage its lands through the property clause of Article IV of the U.S. Constitution, the court said in its 2002 decision. “In our view, the ‘complete power’ that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there,” the court said. “We believe the point painfully apparent that the Tenth Amendment does not reserve to the State of Wyoming the right to manage wildlife, or more specifically vaccinate elk, on the NER, regardless of the circumstances.”

Politics overrules a court decision

Despite winning the legal battle, the federal government folded and Wyoming won the war. Politics reigned, as reported in 2003 by Laura Paskus of High Country News:

But last December, Fish and Wildlife officials decided to go ahead with vaccination. When Barry Reiswig, the manager of the 25,000-acre refuge, opposed the plan, saying it wasn’t compatible with the objectives of the refuge, Fish and Wildlife Regional Director Ralph Morgenweck withdrew Reiswig’s authority over the decision.

Through a Freedom of Information Act request, the Wyoming Outdoor Council obtained e-mails and memos detailing the agency’s decision. One e-mail, to Reiswig from Steve Berendzen, the refuge supervisor for Montana, Wyoming and Utah, reads: “I encourage you to keep your comments to yourself (or very discreet) when asked your opinions on much of this.” Berendzen explains that Steve Williams, the director of Fish and Wildlife, is “very serious” about getting the vaccination program through, and doesn’t want to “impact the tenuous relationship” with the Wyoming’s Game and Fish Department.

“Fish and Wildlife ruled against public opinion and made a mockery of the process,” says Meredith Taylor of the Wyoming Outdoor Council. “It’s a political sham perpetrated by Fish and Wildlife in (Washington,) D.C., and their pawns in Denver.”

What’s happened to the elk brucellosis vaccination program since then? Wyoming discovered that its program produced results that were statistically insignificant. It stopped the program across all its feedgrounds in 2014, but mainly because the bio bullet used to inoculate elk was no longer manufactured, Game and Fish Chief Game Warden Brian Nesvik told WyoFile.

The controversial Montana report this summer was penned by three academics, including Zellmer, plus three consultants who are former federal employees. Among their conclusions were, “The U.S. Constitution grants the federal government vast authority to manage its land and wildlife resources, fulfill its treaty obligations, and control interstate commerce, even when the states object.”